Chase Oyster Bar v Hamo Industries [2010] NSWSC 1167

Chase Oyster Bar v Hamo Industries [2010] NSWSC 1167

Because the Court of Appeal had determined that s 17(2)(a) of the Act was not satisfied and that this was a jurisdictional error depriving the adjudicator of power, relief in the nature of certiorari should be granted. The first defendant's possible alternative right to sue for the debt under s 15(2)(a)(i) did not justify withholding relief. As the challenge succeeded, the money paid into court should be repaid to the plaintiff, and the plaintiff should receive its costs of the successful challenge while the first defendant should be given leave to file a cross-claim.

Jurisdiction
Australia
Judgment Date
24 September 2010
Procedural Posture
Application for Relief in the Nature of Certiorari Under Supreme Court Act 1970 (nsw) S 69 Challenging an Adjudicator's Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Consequential and Final Orders After Court of Appeal Decision
Outcome
Certiorari granted; adjudicator's determination quashed; money paid into court ordered repaid to the plaintiff; first defendant ordered to pay the plaintiff's costs to date; first defendant granted leave to file a cross-claim.
Legal Topics
['certiorari' 'jurisdictional Error' "adjudicator's Determination" 'building and Construction Industry Security of Payment Act 1999 (nsw)' 'costs' 'cross Claim' 'money Paid Into Court']
['administrative Law' 'building and Construction' 'civil Procedure'] ['certiorari' 'jurisdictional Error' "adjudicator's Determination" 'building and Construction Industry Security of Payment Act 1999 (nsw)' 'costs' 'cross Claim' 'money Paid Into Court']

Case Brief

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Procedural Posture

Application for Relief in the Nature of Certiorari Under Supreme Court Act 1970 (nsw) S 69 Challenging an Adjudicator's Determination Under the Building and Construction Industry Security of Payment Act 1999 (nsw) / Consequential and Final Orders After Court of Appeal Decision

Legal Issues

  1. 1 ["Whether relief in the nature of certiorari should be granted to quash the adjudicator's determination where the requirements of s 17(2)(a) of the Building and Construction Industry Security of Payment Act 1999 (NSW) were not satisfied." 'Whether the Court should withhold relief as a matter of discretion because the first defendant may still sue for the claimed amount as a debt under s 15(2)(a)(i) of the Act.' 'Whether the amount paid into court by the plaintiff should be repaid after the challenge to the determination succeeded.' 'Whether the first defendant should be given leave to file a cross-claim.']

Ratio Decidendi

Because the Court of Appeal had determined that s 17(2)(a) of the Act was not satisfied and that this was a jurisdictional error depriving the adjudicator of power, relief in the nature of certiorari should be granted. The first defendant's possible alternative right to sue for the debt under s 15(2)(a)(i) did not justify withholding relief. As the challenge succeeded, the money paid into court should be repaid to the plaintiff, and the plaintiff should receive its costs of the successful challenge while the first defendant should be given leave to file a cross-claim.

Court Disposition

Certiorari granted; adjudicator's determination quashed; money paid into court ordered repaid to the plaintiff; first defendant ordered to pay the plaintiff's costs to date; first defendant granted leave to file a cross-claim.

Orders

  • ['Order that the determination of the second defendant made on 18 March 2010 be quashed.' 'Order that the amount of $122,366.36 paid into court by the plaintiff on 31 March 2010 be repaid, with any accrued interest, to the plaintiff.' "Order the first defendant to pay the plaintiff's costs to date; otherwise make no...